EXHIBIT 10.30
AMENDMENT NO. 3 TO MASTER
REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 3 TO MASTER
REIMBURSEMENT AGREEMENT (this “Amendment No. 3”) amends
that certain Master Reimbursement Agreement made and entered into
as of June 1, 2001, by and among Fannie Mae, Mid-America
Apartments, L.P. and Fairways-Columbia, L.P. (as amended, the
“Master Reimbursement Agreement”) and is made and
entered into as of March 2, 2004 by and among Fannie Mae,
Mid-America Apartments, L.P. Mid-America Apartment Communities,
Inc. and Mid-America Apartments of Texas, L.P. All capitalized
terms not otherwise defined herein shall have the respective
meanings set forth in the Master Reimbursement
Agreement.
RECITALS
WHEREAS, Fannie Mae, Mid-America
Apartments, L.P. and Mid-America Apartment Communities, Inc. are
parties to the Master Reimbursement Agreement;
WHEREAS, Mid-America Apartments,
L.P. and Mid-America Apartment Communities, Inc. have requested and
Fannie Mae has agreed to add three Additional Mortgaged Properties
to the Collateral Pool;
WHEREAS, Fannie Mae, Mid-America
Apartments, L.P. and Mid-America Apartment Communities, Inc. desire
to amend the Master Reimbursement Agreement to add certain
provisions and to add the following Additional Mortgaged Properties
to the Collateral Pool: (a) Park at Hermitage Apartments in
Davidson County, Tennessee, (b) Travis Station Apartments Project
in Austin, Travis County, Texas, and (c) Stassney Woods Apartments
in Austin, Travis County, Texas (the “2004 Additional
Mortgaged Properties”);
WHEREAS, Mid-America Apartments of
Texas, L.P. owns the Mortgaged Properties known as Stassney Woods
Apartments and Travis Station Apartments;
WHEREAS, Mid-America Apartments,
L.P., Mid-America Apartment Communities, Inc. and Mid-America
Apartments of Texas, L.P. (individually and collectively,
“Borrower”) have each determined that being
co-Borrowers under the Master Reimbursement Agreement is in each of
their economic interests and each has received reasonable
consideration for cross-collateralizing and cross-defaulting the
Mortgaged Properties which are part of the Collateral
Pool;
WHEREAS, Mid-America Apartments,
L.P. and Mid-America Apartment Communities, Inc. have entered into
a Contribution Agreement dated October 24, 2002, as amended,
and the Borrower has entered into an amended and restated
Contribution Agreement dated as of even date herewith;
Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
WHEREAS, Prudential Multifamily
Mortgage, Inc., a Delaware corporation (the “ Lender
”) has agreed to make a loan in the amount of $11,720,000 to
Borrower pursuant to that certain Master Credit Facility Agreement
dated as of the date hereof (the “ Credit Agreement
”) between Borrower and Lender, and Borrower has secured its
obligations under the Credit Agreement and the other Loan Documents
(as defined in the Credit Agreement) by, among other things,
granting in favor of Lender an interest in the second priority
Reimbursement Mortgages on each of the 2004 Additional Mortgaged
Properties known as Travis Station and Stassney Woods and a third
priority Conventional Mortgage on the Additional Mortgaged Property
known as Park at Hermitage;
WHEREAS, simultaneously with the
closing of the issuance of the Bonds for the benefit of the 2004
Additional Mortgaged Properties, Fannie Mae has agreed to receive
an assignment of Lender’s rights under the Credit Agreement
and its interests under the related Reimbursement Mortgages, and to
purchase a 100% participation interest in each loan made by Lender
to Borrower under the Credit Agreement;
WHEREAS, the obligations of Borrower
to Fannie Mae under the Credit Agreement and the related Loan
Documents, the Master Reimbursement Agreement and the Reimbursement
Security Documents shall be cross-defaulted and
cross-collateralized;
WHEREAS, Fannie Mae and Borrower
intend these Recitals to be a material part of this Amendment No.
3.
NOW, THEREFORE, for and in
consideration of Ten Dollars ($10.00), the mutual covenants and
agreements set forth herein, and other good and valuable
consideration, all of which each party agrees constitutes
sufficient consideration received at and before the execution
hereof, the parties agree as follows:
AGREEMENTS
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1.
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Section 1.2 is hereby amended by adding the
following defined terms:
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“ Amortization Period
” means the period of 30 years.
“ Conventional Mortgage
” means the third priority Security Instrument (including all
riders thereto) executed by Mid-America Apartments, L.P. in favor
of Lender on the Mortgaged Property known as The Park at Hermitage
and any other third party Security Instrument that may be executed
in the future securing the obligations of the Borrower under the
Credit Agreement and the Facility Note.
“ Credit Agreement
” means the Master Credit Facility Agreement dated as of
March 2, 2004 between Borrower and Lender, as the same may be
amended, modified, supplemented or restated from time to
time.
“ DMBS Loan ”
means a “Loan” (as such term is defined in the Credit
Agreement).
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Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
“ Facility Debt Service
” means, as of any specified date, the amount of interest and
principal amortization, during the 12 month period immediately
succeeding the specified date, with respect to the DMBS Loans
Outstanding on the specified date, except that, for these purposes,
each DMBS Loan shall be deemed to require level monthly payments of
principal and interest (at the Coupon Rate for the DMBS Loan) in an
amount necessary to fully amortize the original principal amount of
the DMBS Loan over the Amortization Period, with such amortization
deemed to commence on the first day of the 12 month
period;
“ Facility Note ”
means the DMBS Discount Multifamily Note in the principal amount of
$11,720,000 delivered by Borrower to Lender pursuant to the Credit
Agreement.
“ Lender ” shall
have the meaning given that term in the Credit
Agreement.
“ Loan Documents
” shall have the meaning given that term in the Credit
Agreement.
“ 2004 Additional Mortgaged
Properties ” means: (a) Park at Hermitage Apartments in
Hermitage, Tennessee, (b) Travis Station Apartments Project in
Austin, Texas, and (c) Stassney Woods Apartments in Austin,
Texas.
2. Section
1.2 is hereby amended by deleting the definition of
“Aggregate Debt Service” in its entirety and replacing
such definition with the following definition:
“ Aggregate Debt
Service ” means, at any time, the sum of (i) the
aggregate scheduled debt service for all the Loans for the
applicable period, assuming that the scheduled debt service on each
Loan is equal to interest at the applicable Underwriting Rate plus
principal payments required to be made to the applicable principal
reserve fund relating to such Loan and (ii) the Facility Debt
Service for all DMBS Loans for the applicable period; provided,
however, if the interest rate on any Note has been converted to
a Fixed Rate, then the assumed scheduled debt service for such Loan
shall be equal to interest at such actual Fixed Rate with respect
to such Loan plus the Fee Component plus principal payments and all
payments required to be made to each of the principal reserve funds
relating to such Loan.
3. Section
1.2 is hereby amended by deleting the definition of
“Aggregate Loan to Value Ratio” in its entirety and
replacing such definition with the following definition:
“Aggregate Loan to Value
Ratio” means, for
any specified date, the ratio of (expressed as a percentage)
(a) the sum of the Facility Amount and DMBS Loans outstanding
on the specified date to (b) the aggregate of the Valuations
most recently obtained prior to the specified date for all of the
Mortgaged Properties.
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Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
4. Section
1.2 is hereby amended by deleting the definition of
“Allocable Facility Amount” in its entirety and
replacing such definition with the following definition:
“ Allocable Facility
Amount ” means (i) during any period in which there
is no Additional Collateral, in relation to each Mortgaged
Property, an amount which equals (a) the sum of (x) the aggregate
Outstanding principal amount of Bonds issued to finance such
Mortgaged Property and (y) the portion of the Outstanding DMBS
Loans allocated by Lender to such Mortgaged Property minus (b) the
amount on deposit in the Principal Reserve Fund (without regard to
earnings) relating to such Mortgaged Property or (ii) during
any period in which Additional Collateral exists, in relation to
each Mortgaged Property, an amount determined by Fannie Mae in its
discretion.”
5. Section
1.2 is hereby amended by deleting the definition of “Borrower
Documents” in its entirety and replacing such definition with
the following definition:
“ Borrower Documents
” means, collectively, the Bond Documents, the Mortgage Loan
Documents, the Loan Documents and all other agreements, instruments
or documents in connection with the Bonds, the Loans, the DMBS
Loans, the Security Instruments, this Agreement, the Credit
Agreement or the transactions contemplated thereby or
hereby.”
6. Section
1.2 is hereby amended by deleting the definition of
“Commitment” in its entirety and replacing such
definition with the following definition:
“ Commitment ”
means one hundred (100) million dollars minus the outstanding
principal amount of DMBS Loans.”
7. Section
1.2 is hereby amended by deleting the definition of
“Reimbursement Mortgages” in its entirety and replacing
such definition with the following definition:
“ Reimbursement
Mortgages ” means each second priority Security
Instrument (including all riders thereto) executed by a Borrower in
favor of Fannie Mae or, in the case of the 2004 Additional
Mortgaged Properties known as Stassney Woods and Travis Station, in
favor of Fannie Mae and Lender on each of the Mortgaged Properties
securing the obligations of the Borrower under this Agreement, the
Credit Agreement and the Facility Note, including, without
limitation, the obligations under Article IV of this
Agreement.”
8. Section
1.2 is hereby amended by deleting the definition of
“Reimbursement Security Documents” in its entirety and
replacing such definition with the following definition:
“ Reimbursement Security
Documents ” means, collectively, this Agreement, the
Reimbursement Mortgages, the Hedge Documents, the Hedge
Assignments, the Cash Management Agreement, the Ancillary
Collateral Agreements, the Assignment of Management Agreement, the
Pledge Agreements,
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Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
the Cash Collateral Agreement, the
Letter of Credit, the Credit Agreement, the Facility Note, the
Conventional Mortgage and any other documents executed by Borrower
from time to time to secure any of Borrower’s obligations
under this Agreement or the Loan Documents, title policies, UCC
Fixture Filings and Financing Statements, as each such document,
agreement or instrument may be amended, supplemented, modified or
restated from time to time in accordance with its respective
terms.”
9. Section
1.2 is hereby amended by deleting the definition of
“Underwriting Rate” in its entirety and replacing such
definition with the following definition:
“ Underwriting Rate
” means 6.9861% for the Mortgaged Property known as Fairways
Apartments, 6.9861% for the Mortgaged Property known as Post House
North Apartments, 6.9861% for the Mortgaged Property known as
Reflection Pointe Apartments, 6.258% for each of the Four
Additional Mortgaged Properties, 6.22% for the Mortgaged Property
known as Westbury Creek Apartment, 6.1746% for the Mortgaged
Property known as Windridge Apartments, 6.13772% for the Mortgaged
Property known as The Park at Hermitage, 6.29552% for the Mortgaged
Property known as Travis Station Apartments and 6.26444% for the
Mortgaged Property known as Stassney Woods Apartments.
10. Section
6.2(c) is hereby amended by deleting such provision in its entirety
and replacing it with the following:
“(c)
Release Price . The “ Release Price ” for
each Mortgaged Property means (i) during the period Section
3.13(1) of this Agreement is in effect, the amount, if any,
required to pay the outstanding principal of, interest on and
premium relating to the Bonds issued to finance the Collateral
Release Property and the portion of the Outstanding DMBS Loans
allocated by Lender to such Collateral Release Property, so that,
immediately after the release, the Coverage and LTV Tests will be
satisfied and neither the Aggregate Debt Service Coverage Ratios
for the Trailing 12 Month Period will be reduced nor the Aggregate
Loan to Value Ratio for the Trailing 12 Month Period will be
increased as a result of such release and (ii) at all times
after Section 3.13(1) of this Agreement is no longer in effect the
greater of (1) 125% of the Allocable Facility Amount for the
Mortgaged Property to be released and (2) the amount, if any,
required to pay the outstanding principal of, interest on and
premium relating to the Bonds issued to finance the Collateral
Release Property and the portion of the Outstanding DMBS Loans
allocated by Lender to such Collateral Release Property, so that,
immediately after the release, the Coverage and LTV Tests will be
satisfied and neither the Aggregate Debt Service Coverage Ratios
for the Trailing 12 Month Period will be reduced nor the Aggregate
Loan to
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Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
Value Ratio for the Trailing 12
Month Period will be increased as a result of such release. In
addition to the Release Price, the Borrower shall pay to the Lender
all associated prepayment premiums, the Termination Fee, the
Termination Fee (as such term is defined in the Credit Agreement)
and other amounts due under the Notes, this Agreement and the
Credit Agreement. Notwithstanding the above, in lieu of paying all
amounts owing on the Bonds issued to finance the Collateral Release
Property (but not in lieu of paying the portion of the Outstanding
DMBS Loans allocated by Lender to such Collateral Release
Property), the Borrower may sell the Collateral Release Property to
a Person who is not directly or indirectly owned, controlled or in
any way otherwise affiliated with any Borrower or the Key
Principal, or any General Partner or any affiliate or subsidiary of
any Borrower, the Key Principal or any General Partner and replace
Fannie Mae as credit enhancer and liquidity provider with a
substitute entity or terminate Fannie Mae as the credit enhancer,
if such enhancement is not necessary due to the rating of the
purchaser so long as in each case either the substitute entity or
purchaser has a long-term credit rating which is “A” or
better by S&P and “A” or better by Moody’s.
Notwithstanding the above, although Fannie Mae has no obligation to
do so, it may, in its sole discretion, agree to provide credit
enhancement and liquidity support for the Bonds relating to the
Collateral Release Property on terms satisfactory to Fannie Mae in
which case, in the event the Loan Servicer is the servicer for the
Collateral Release Property no Termination Fee shall be owing as a
result of the release (but any Facility Termination Fee shall be
due and owing).”
11. The
additional provision added to Section 3.13(1) pursuant to Amendment
No. 1 is hereby amended by deleting such provision in its entirety
and replacing it with the following:
“Notwithstanding that the
obligations under each Note and Bond Mortgage relating to the Four
Additional Mortgaged Properties, the Two Additional Properties and
the 2004 Additional Mortgaged Properties are not generally personal
obligations of the Borrower and notwithstanding that Fannie Mae is
a holder of such Notes, each Borrower agrees and acknowledges that
the intent of the parties to this Agreement is that each Borrower
is and shall remain, except as provided in Section 3.13(2), jointly
and severally personally liable to Fannie Mae for the payment and
performance of all Obligations throughout the term of this
Agreement. Consequently, in the event that Fannie Mae becomes the
sole holder of such Notes and Bond Mortgages, by its rights of
subrogation or otherwise, any amounts owing to Fannie Mae under
such Notes or Bond Mortgages shall be joint and several personal
obligations of each Borrower. In addition, it is the intent of the
parties that the non-recourse liability of the Borrowers under such
Notes shall not in any manner or under any circumstances be
interpreted or understood to contradict, undermine, negate or
nullify that each Borrower is and shall remain, except as provided
in Section 3.13(2), jointly and
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Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
severally personally liable to
Fannie Mae for the payment and performance of all Obligations
throughout the term of this Agreement.”
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12.
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Section 8.1 is hereby amended by adding a new
paragraph (q) to read as follows:
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“(q) the
occurrence of an “Event of Default” under and as
defined in the Credit Agreement, the Conventional Mortgage or any
other Loan Document.”
13. Section
9.5(a) is hereby amended by deleting the notice address of Borrower
in its entirety and replacing it with the following:
“As to the
Borrower:
c/o Mid-America Apartment
Communities, Inc.
6584 Polar Avenue
Suite 300
Memphis, Tennessee 38138
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Attention:
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Simon R.C. Wadsworth
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Chief Financial Officer
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Telecopy No.:
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(901) 682-6667
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with a copy to:
Bass, Berry & Sims
PLC
The Tower at Peabody
Place
100 Peabody Place
Suite 900
Memphis, Tennessee
38103-3672
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Attention:
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John A. Stemmler, Esq.
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Telecopy No.:
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(901) 543-5999”
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14. Schedules
2, 3, 4, 5 and 9 are hereby amended and restated in their entirety
as set forth in Annex 1 attached hereto.
15. By
execution and delivery of this Amendment No. 3 by Fannie Mae,
Fannie Mae hereby consents to the addition of the 2004 Additional
Mortgaged Properties to the Fannie Mae Credit Facility as
Additional Mortgaged Properties effective as of March 2, 2004 (the
“ Effective Date ”).
16. In
connection with the addition of the 2004 Additional Mortgaged
Properties to the Fannie Mae Credit Facility as Additional
Mortgaged Properties, Borrower and Fannie Mae acknowledge and agree
as follows in relation to such Additional Mortgaged
Properties:
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(a)
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The Facility Fee shall be as follows:
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(i)
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Credit Enhancement Rate shall be 57 basis points
per annum.
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Amendment No. 3 to
Master Reimbursement Agreement
Mid-America Apartments
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(ii)
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Principal Reserve Fund Rate shall be 15 basis
points per annum.
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(iii)
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Loan Service
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